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Obscure but Powerful: Shaping U.S. Immigration Policy Through Attorney General Referral and Review

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Obscure but Powerful: Shaping U.S. Immigration Policy Through Attorney General Referral and Review RETHINKING U.S. IMMIGRATION POLICY INITIATIVE Obscure but Powerful Shaping U.S. Immigration Policy through Attorney General Referral and Review By Sarah Pierce U.S. IMMIGRATION POLICY PROGRAM Obscure but Powerful Shaping U.S. Immigration Policy through Attorney General Referral and Review By Sarah Pierce Migration Policy Institute January 2021 Contents Executive Summary ....................................................................................................................................... 1 1 Introduction .............................................................................................................................................. 2 2 History of the Attorney General’s Referral and Review Power ........................ 3 A. The Homeland Security Act and Its Effects .................................................................................................6 B. Referral and Review as an Administrative Tool .........................................................................................9 3 The Trump Administration’s Use of Self-Referral ...................................................... 12 A. Restricting Access to Asylum ............................................................................................................................13 B. Eliminating Immigration Judge Discretion ..............................................................................................17 4 The Future of Self-Referral .......................................................................................................... 19 A. Beyond the Trump Administration ...............................................................................................................20 B. Establishing Procedural Requirements to Increase Transparency and Support High-Quality Decisions .........................................................................................................................................21 5 Conclusion ............................................................................................................................................... 24 About the Author ......................................................................................................................................... 26 Acknowledgments ...................................................................................................................................... 27 SHAPING U.S. IMMIGRATION POLICY THROUGH ATTORNEY GENERAL REFERRAL AND REVIEW SHAPING U.S. IMMIGRATION POLICY THROUGH ATTORNEY GENERAL REFERRAL AND REVIEW Executive Summary In making wide-reaching changes to the U.S. immigration system, the Trump administration employed a range of executive action tools. One of them is a little known but powerful authority of the attorney general to alter or reinterpret the application of immigration laws. Through a series of consequential decisions, the Trump administration’s attorneys general elevated the reach and public profile of this obscure bureaucratic tool, raising questions about its historic roots, appropriate use, and future relevance. Formally called the “referral and review power,” the authority allows the attorney general The Trump administration’s attorneys to review and overrule decisions made by general elevated the reach and public the Board of Immigration Appeals (BIA), the profile of this obscure bureaucratic tool, immigration appellate body housed within the U.S. Department of Justice. Trump administration raising questions about its historic roots, attorneys general referred more cases to appropriate use, and future relevance. themselves for review than under any prior administration, Democratic or Republican. These decisions stretched beyond the norms and traditional boundaries of the exercise of this power, making substantive changes to legal regimes—such as the U.S. asylum system—as well as to court procedures, including how immigration judges manage their individual dockets. This increase in the frequency of use and impact of the attorney general’s power has exacerbated concerns that predate the Trump administration. Allowing the attorney general—the country’s chief law enforcement officer—to intercede in individual immigration cases has raised questions about the true independence of the immigration adjudication system. In addition, attorneys general have issued these decisions with minimal procedural safeguards or transparency; regulations require only that the decision be issued in writing to the affected parties. Attorneys general have frequently issued decisions without input from the parties in the case or other relevant stakeholders, and many times, the affected parties have not even been aware that the attorney general has taken up their case until after the decision is issued. The lack of transparency and, at times, failure to fully brief the legal issues also have negative implications for the legal and policy soundness of attorney general decisions and their acceptance by the broader populations ultimately affected by those decisions. Beyond questions of procedural consistency and transparency, the fact that this authority has remained within the Justice Department is itself problematic. Before the creation of the U.S. Department of Homeland Security (DHS) under the Homeland Security Act of 2002, most immigration functions were under the jurisdiction of the Justice Department, headed by the attorney general. The 2002 law moved the bulk of immigration policy-making and operations to DHS. Thus, attorneys general no longer hold the expertise that is derived from overseeing immigration operations nor are they tasked with immigration policy- making, yet their decisions can bind DHS, even over that agency’s protests. Since 2003, attorneys general have used this power to make significant policy changes, ranging from abandoning well-established criteria for granting asylum and changing the immigration consequences of certain criminal convictions, to MIGRATION POLICY INSTITUTE | 8 MIGRATION POLICY INSTITUTE | 1 SHAPING U.S. IMMIGRATION POLICY THROUGH ATTORNEY GENERAL REFERRAL AND REVIEW SHAPING U.S. IMMIGRATION POLICY THROUGH ATTORNEY GENERAL REFERRAL AND REVIEW dissolving the constitutional right of foreign BOX 1 nationals in removal proceedings to effective About the Rethinking U.S. Immigration Policy Project assistance of counsel. This report is part of a multiyear Migration Policy Institute The Trump administration’s aggressive use of (MPI) project, Rethinking U.S. Immigration Policy. At a the referral and review power invited stronger time when U.S. immigration realities are changing rapidly, this initiative aims to generate a big-picture, evidence- scrutiny than ever before. Some of the concerns driven vision of the role immigration can and should play raised in this and prior administrations could in America’s future. It will provide research, analysis, and be addressed by establishing more formal policy ideas and proposals—both administrative and procedures and increasing the transparency legislative—that reflect these new realities and needs for surrounding the power’s use. Such procedural immigration to better align with U.S. national interests. safeguards would increase the quality and acceptability of decisions, but tackling the The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration deeper issues associated with this authority’s issues, which include economic competitiveness, national location within an agency that is no longer security, and changing demographic trends, as well as in the lead on immigration will require a issues of immigration enforcement and administering the critical rethinking of the effective use of this nation’s immigration system. power along with its appropriate placement within the immigration bureaucracy. Referral To learn more about the project and read the other and review provides a ready tool for any new studies generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration. administration to undo prior policy measures and nimbly and efficiently introduce different ideas for improving the performance of the U.S. immigration system, but it must be trusted to produce high- quality decisions that advance a coherent and consistent immigration policy. 1 Introduction Using executive authority, the administration of President Donald J. Trump made more significant changes to the U.S. immigration system than any other administration in modern memory. In the face of inaction by Congress—apart from restricting some of the president’s hefty spending asks—the administration tapped into the wide range of options at its disposal to influence immigration policy, including invoking underutilized laws, issuing regulations and executive orders, and taking up other bureaucratic tools. Among these tools is an obscure but powerful legal authority—the attorney general’s ability to self-refer and review immigration court decisions. This tool, at times referred to as “certification,” is an extension of the attorney general’s authority over decisions made by the immigration appeals court, the Board of Immigration Appeals (BIA), which is housed in the U.S. Department of Justice. It allows attorneys general to refer any BIA decisions to themselves for review. The U.S. Department of Homeland Security (DHS) and the BIA may also refer decisions for the attorney general to review, as could DHS’s predecessor agency, the Immigration and Naturalization Service
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